ANALYSIS OF DECEMBER 30, 2008 CAV OPINIONS
[Posted December 30, 2008] The Court of Appeals closes out the year with three more published opinions released today.Domestic relations
The court provides an excellent how-to manual for trial judges who want to make their rulings appeal-resistant, in Chretien v. Chretien. The marriage wasn’t a long one; just three years between the wedding and the filing of the divorce papers. But it was even less time before calamity struck. The wife was injured while a passenger on a motorcycle that crossed a center line and crashed into an oncoming vehicle. The negligent operator of the bike, unfortunately, was her husband.
The wife collected almost $150,000 from three insurance companies, and invested most of those proceeds in her own name, as her financial advisor recommended. When the divorce cranked up, the question arose as to whether those funds were separate or marital. The wife argued that they were separate, probably because she was the one who got hurt. The husband pointed to the equitable distribution statute, which says that any portion of such a recovery that relates to lost wages and unreimbursed medical bills is marital.
The trial court no doubt eyed the husband warily as he ruled that the funds were separate and belonged exclusively to the wife. In doing that, it erred, the CAV rules today. All property is presumptively marital, and if one spouse wants to claim certain property as separate, he or she has the burden of proving that. The wife hadn’t adduced any evidence to show that none of the recovery was for meds or lost wages, so it was improper to give everything to her.
Except for one other little ruling in the final order: The trial judge, evidently lacking complete confidence in his first ruling, added a postscript. He found, as an alternative ground for giving all of the money to the wife, that it would be inequitable to allow the husband to share in the loot, since it was his negligence that caused the accident and the injuries in the first place. The appellate court finds today that that’s a perfectly satisfactory alternate ground for awarding the money to the wife, and it affirms by holding that the trial court’s previous ruling was therefore harmless error.
For the next case, here are a couple of words that are guaranteed to grab your attention: Attorney’s fees. The case is Tyszcenko v. Donatelli, and involves a proceeding under the Uniform Child Custody Jurisdiction and Enforcement Act.
Husband and wife got divorced in Prince William County in 1999; wife got the two kids, and husband got agreed visitation rights when wife and kids moved to Arizona six years later.
Two years after the move, wife asked the Prince William court to transfer further proceedings to the Arizona courts. Technically, the motion asked the Virginia court to decline to exercise its jurisdiction because another court is more convenient. The Virginia court agreed to do that. But that’s not the end of the matter – wife had also asked the Virginia court to award her attorney’s fees for this motion.
Hey . . . wait a minute. Husband didn’t do anything wrong, right? All he did was continue to live in Virginia, and now his ex-wife wants him to pay her attorney’s fees because she decided to move out west?
Well, yes. The trial court found a particular provision in the UCCJEA to be compelling: “The court shall award the prevailing party [attorney’s fees], unless the party from whom fees or expenses are sought establishes that the award would be clearly inappropriate.” That shall in there is pretty convincing. In other words, there is a presumption in the Act that the loser pays, and the wife unquestionably prevailed in her effort to transfer the case to Arizona. The trial court gave her almost $10,000 in fees.
Husband went to the Court of Appeals and argued that this provision only applies to enforcement proceedings – where the movant has to drag the respondent to court for his or her failure to do something ordered by the court – so this provision doesn’t mandate fees, as the wife had argued. This is a problematic argument in at least one respect, because the statute itself doesn’t contain any language limiting its application to enforcement proceedings.
Nevertheless, the husband wins, and secures a remand. He overcomes the problem I just mentioned by pointing out that the fee-shifting statute appears in Article 3 of the Act, which deals exclusively with enforcement proceedings. He also notes that there’s another fee-shifting statute elsewhere in the Act, in Article 2, which deals with jurisdiction (and includes the provision allowing a court to transfer a case to another state). The provision in Article 2 allows a court to assess fees where the court dismisses a case because a party acts unjustifiably. If the statute in Article 3 covered all successful UCCJEA litigants, then there would be no need for the provision in Article 2. It’s a time-honored principle of statutory construction that the courts won’t construe a statute in such a way as to make a legislative pronouncement “a futile gesture.”
The court thus rules today that this fee-shifting statute only applies in enforcement proceedings. It remands the case for the trial court to consider, in the first instance, whether two other domestic relations statutes based on general equitable principles would justify a fee award. The court also rejects both parties’ requests for appellate legal fees, since the issues litigated in the CAV were substantial and neither party engaged in delaying or obstructive tactics.
There’s one final point here that merits mention. Near the end of the decision, the court addresses the wife’s contention that the appellate court should go ahead and affirm the award of fees under the two equitable statutes. The CAV decides to let the trial court have the first crack at that issue. The husband had argued that the wife had waived the right to seek such consideration on remand, because her lawyer didn’t object to the trial court’s failure to award the fees under those two statutes the first time around. The CAV swats this argument aside with the following language: “Suffice it to say, requiring the prevailing party to object to the trial court’s choice of one asserted ground for awarding the requested relief over another does not comport with our sense of logic and reason.” (Emphasis in original)
This statement by the court gets a hearty, “Amen, brother” (actually, it should be “sister”; today’s opinion was authored by Judge Clements) from me, and it will from most other appellate lawyers, too. I recognize that it’s essential to get a ruling on your motion before an appellate court can review it; appellate courts don’t review non-rulings (although they can overturn a trial court’s explicit failure to rule, if you assign error to that). But once a trial court makes a dispositive ruling in your favor, I don’t perceive any good reason why you should have to ask the court to keep ruling in your favor on alternative grounds; the case is over, and you won. Continuing to press on after getting a winning ruling makes you look greedy, at a minimum. And speaking as a former economics major, I’d add that it would be inefficient; even if you lose on the primary basis for the trial court’s rulings, appellate courts apply the “right for the wrong reason” rule all the time to affirm cases on other grounds than those relied upon below.
That being said, not everyone agrees with this conclusion, and trial lawyers would be well-advised to read the following sentences carefully. Two months ago, the Supreme Court of Virginia ruled that an appellee couldn’t rely upon such an alternative ground because the trial court had never actually reached it, and the appellee didn’t assign error to that failure to rule. Virginia Baptist Homes v. Botetourt County, 276 Va. 656, 669 (2008). This was a very surprising holding in my view, because it appears to repudiate the “right for the wrong reason” rule and require the parties to keep on litigating a case after the court has made a case-dispositive decision.
In this dispute, I think the CAV’s approach is right, and the Supreme Court’s is wrong; but as my loyal readers have read in this space before, I don’t have either a robe or a vote in this one. It’s still possible that the Supreme Court will apply the “right for the wrong reason” rule in other cases, but you have been warned: There is some precedent for the principle that you need to cover all of your bases in the trial court, even when you win.
Criminal law
Woody v. Commonwealth is a sad tale in that it involves an error by a lawyer that ends up scuttling the appeal. The ruling will leave some casual observers crying, “Tain’t fair.” Read on:
Woody made a couple of über-dumb decisions one day in Amherst County. The first one was to get behind the wheel after having had a few too many to drink. The second was to pull across four lanes of traffic, right in front of a Sheriff’s Department investigator. (We can probably safely assume that Decision #2 was a proximate result of Decision #1.) That brought on the lights and siren, and upon checking on Woody, the investigator saw the usual telltale signs of drunk driving. Woody failed field sobriety tests and was arrested, but he refused to take a blood test.
He was convicted in GDC of both DUI and refusal, and appealed to circuit, where he fared no better. He appealed on to the Court of Appeals. That court initially sent the refusal charge over to the Supreme Court, since refusal is a civil proceeding, and the CAV doesn’t have jurisdiction. It then proceeded to consider the DUI charge.
Today’s ruling turns on the identity of the prosecuting authority. The original warrant listed that authority as the county, but Woody’s lawyer listed the Commonwealth as the appellee in the petition for appeal. Because the sentencing order was ambiguous in at least that one respect, the CAV sent the matter back to the trial court for clarification. The trial court responded that Woody had been convicted of violating the county’s DUI ordinance, which simply incorporates state motor vehicle laws. That makes the county the prosecuting agency, not the Commonwealth.
But the Augusta Commonwealth’s Attorney prosecutes cases under both local and state law, so it really didn’t matter; the attorney obviously knew what case was being appealed, and who the appellant was, so any error in the identity of the governmental entity was immaterial. So Woody’s lawyer argued to the CAV. Unfortunately, it does matter, a great deal. The appellate court rules today that it has no jurisdiction to consider the appeal, since the petition for appeal didn’t identify the correct appellee. This isn’t a trivial issue; the only way an appellate court can acquire personal jurisdiction over an appellee is for that party to be named in the petition. And beyond question, the county, as the prosecuting authority, is an indispensible party to the appeal. Virginia caselaw establishes quite clearly that an appeal cannot proceed without all indispensible parties, so this appeal is dismissed.
The first-blush unfairness of this ruling comes from the fact that even the CAV wasn’t clear on just who the proper appellee was, and had to ask the trial court for clarification. The appellant ultimately paid a hefty price for having guessed wrong on that ambiguity. But jurisdiction isn’t exactly something that any court can treat loosely; you either have jurisdiction, or you don’t.
The obvious practice tip here is to be very careful in naming your parties when you craft an appellate pleading. The reciprocal tip is for appellees: Pay close attention to your opponent’s certificate at the end of a petition for appeal, to see that she has named all indispensible parties. If she has left someone out, you may get an easy victory on jurisdictional grounds.
